Tire Rubber Co. v. Cooper

By chapter 252, Laws 1934, it was enacted "that the chancery courts in all litigated cases, upon the request of any party to the suit, shall find the facts specially and state separately its conclusions of law thereon, and its findings and conclusions shall be entered of record and, if an appeal is taken from the decree, shall be included by the clerk in the record which is certified to the supreme court."

The purpose of this statute was to prevent the concealment, in a general decree, of the grounds upon which the trial court proceeded to its final conclusion, leaving the appellate court without record information, necessary to justice in many cases, as to whether the final decision rested upon conclusions of law or upon findings of fact leading to the same conclusion, with the result that cases were often affirmed upon the presumption by the appellate court that the trial court had arrived at a conclusion upon the facts which would support the decree, when, in truth, the conclusion of the trial judge was to the opposite as to the facts, but his conclusions of law, as applied to the facts actually found by him, were erroneous.

The desirability of such legislation has been generally recognized throughout the country, as is evidenced by statutes of similar import in many other states and by the rule to the same effect in the federal courts. The long delay in its enactment here has been due to the fear that its effect would be to add to the evil of taking cases under advisement, to which we will later refer. But, having been enacted, the statute is mandatory when either or any of the parties at the proper time shall have invoked it. And it is made easy to comply with and without any sort of necessity for any delay, when considered in connection with section 724, Code 1930, which provides that "by means of the court reporter's shorthand notes it shall be competent and effectual for the purposes of appeal and all otherwise, to make of the record every part of the proceedings arising and done during the trial, from the opening until the conclusion thereof."

Long before the statute just mentioned was enacted, the practice of some of the chancellors, as we know from repute and from many records, was as follows: When the testimony had been concluded and the case had been argued, the chancellor (1) would review the evidence in some detail as to each litigated point and outline the processes by which from the various items of the evidence he reached his ultimate conclusion of fact upon each of said litigated points, and thereupon he would state his conclusions of law as applied thereto, and would announce the decree which should be drawn and submitted. This, depending upon the nature of the case and the length of the trial, would sometimes require several minutes, or in some few cases as much as half an hour or even more. Having done this, he would (2) call the court reporter and dictate into the record his findings of the ultimate facts upon each litigated point of fact, including those which he did not regard as necessary to be decided under his own views of the law, but which might nevertheless be considered as necessary to the case by the appellate court, and then he would briefly state his conclusions of law, usually without any citation of authorities, thereby separately disclosing the processes of ultimate fact and conclusions of law by which he arrived at the decree directed to be taken. It was the purpose of the statute to make it mandatory upon all chancellors, when requested, to do the equivalent of what was done by the chancellors above mentioned, insofar as concerns what they dictated to the court reporter, and as above outlined under numeral 2. It was not the purpose to require to be made of record the review set out under numeral one. In brief, it was the purpose of the statute that there should be a separate finding of the ultimate facts as to each litigated point of fact, but not of the evidentiary facts.

The distinction between evidentiary facts and ultimate facts is generally well enough understood. It will be necessary here only to briefly restate that distinction. An evidentiary fact is one which furnishes evidence of the existence of some other fact; while an ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts. There are several reasons why the statute did not contemplate or require, on penalty of reversal, a finding or findings of the evidentiary facts; but it is sufficient to say that one and the most important of the reasons is that such a requirement would inevitably aggravate the evil of taking cases under advisement — an evil which has already too much embarrassed the proper administration of justice in the chancery courts.

The requirements of the statute to summarize, are as follows: (1) When either of the parties desires the chancellor to make a separate finding of fact, and thereupon separately his conclusions of law, the party must so request at the close of the argument and, in any event, before the chancellor has entered upon the delivery of his opinion, or, if no opinion be delivered, then before he announces his conclusions and directions as to the decree to be taken. It is not necessary to make the request by written motion drawn out and filed; a dictation of it to the court reporter, in the presence and hearing of the chancellor, is all that is necessary.

(2) In response thereto the chancellor must state, either in the court reporter's transcript, and preferably so, or else in longhand written out and filed in the case, the ultimate facts upon each contested or litigated point of fact, separately from the conclusions of law, and thereupon his conclusions of law in such manner that the conclusions of fact and of law may be distinguished. And, as we have already observed, he should include in his ultimate findings of fact those controverted issues of fact which the chancellor himself may regard as unnecessary to a decision of the case, but which might be regarded as necessary by the appellate court. This to prevent reversals and remands, such as happened in Bullard v. Citizens' Nat. Bank (Miss.), 160 So. 280, 284. The above summary is in accord with numerous decisions in other jurisdictions under similar statutes, many of which have been gathered in the briefs, and will be shown in the abstract of the briefs by the official reporter.

The point is presented in the arguments as to what ought to be the practice in regard to particularized requests to the chancellor to find as to specified points; and the argument covers the inquiry as to what shall be done, when, under a general request, the chancellor has made his findings, and thereupon or thereafter requests are presented to him to make his findings more complete or specific. We prefer not to attempt any decision upon those particular points at this time. We prefer to have the judgment of the chancellors themselves upon it and to see what they think should be done in that regard before we shall go further than stated in the preceding paragraphs. These matters should be cautiously worked out by experience and by a process of trial and error in order to finally arrive at a sound, convenient and practicable procedure, and one which at the same time will not operate to delay cases.

The motion here is to remand the case for a more specific finding upon the facts in issue, and appellant insists upon findings which it seems to us would go deeply into the evidentiary facts. But the chancellor has apparently attempted to comply with the statute in this case, and whether he has actually done so we could not tell without a review of the record. It is only when it is apparent on the face of the findings as made by the chancellor and without a review of the remainder of the record that he has either made no attempt to comply with the statute or that his attempt is so inadequate as to amount, in substance, only to an empty gesture, that we will remand on a motion such as made in this case. Any other rule would result in the consideration of such appeals in segregate sections or by piecemeal, and would intolerably consume the time both of the court and of counsel. Wilkinson v. Love, 149 Miss. 517,111 So. 457, 459.

Motion overruled.

Ethridge, P.J., and Anderson, J., concur.